interventions to promote the wellbeing of construction workers through the introduction and revision of construction regulations (CIDB, 2009). Primarily the purpose of introducing health and safety legislation is to prevent accidents and their consequences, disablement and fatality as well as ill health in the workplace. To achieve its objective, good legislation should be supported by effective, sensible and accountable enforcement (Ibid).
In the USA, the impetus for passing Occupational Safety and Health Act of 1970 (OSH Act) by Congress was a result of workplace accidents claiming an average of 14,000 lives annually, causing 2.5 million disabilities and approximately 300,000 new cases of occupational diseases (Goetsch, 2013). This reports by the US Department of Labour would ensure a sound piece of legislation by Congress. The purpose as stated by Congress is “...to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources” (OSHA, 1970:3). Furthermore, indicating that no worker should have to choose between their life and their job. Under this act, standards for construction health and safety OSHA CONSTRUCTION STANDARDS were promulgated under section Code of Federal Regulations (CFR) Part 1926 subparts A – Z (Goetsch, 2013).
Since 1989, a series of European Directives in collaboration with the ILO's convention 167 and recommendations 175 changed the outlook on safe work procedures throughout SME's involved in all industries (HSE, 1999). Furthermore, the employer’s responsibilities increased, new worker’s obligations introduced as well as more involvement required from managers in the management of risks in health and safety (ibid). In 1992, in response to an unacceptably
23 high number of construction accidents, the European Parliament and the Council of the European Union issued Directives 92/57/EEC (Aires et al., 2016). The directive lays down the minimum health and safety requirements at temporary or mobile construction sites within the European Countries (Summerhayes, 2002). Aires et al. (2016) further note that since the implementation of the directive, members of the European Union evidenced a positive impact of the Directive as a result of fewer accident reports although several other measures were implemented to improve health and safety. However, it is argued that it is complicated to establish a direct connection between accidents and regulations.
The EU Directive 92/57/EEC became a vehicle for implementation of the United Kingdom’s Construction Design and Management (CDM) Regulations 1994 into British law. All members of the EU were required to transpose the directive into their national legislative framework by 31st December 1993 (Aires et al., 2016). The former was implemented in response to unsafe work procedures on construction sites as a result of uncoordinated and fragmented construction activities (Summerhayes, 2002). The CDM Regulations strategy is to reduce fatalities and injuries associated with construction work by further influencing related occupational health and welfare (ibid). Moreover, the CDM Regulations aim at disrupting the cultural norm initiated by the Health and Safety Act 1974; the Act had a prescriptive approach instead of the
‘deemed to satisfy’ approach. Further modifications of the regulations were made and were published as Construction (Health, Safety and Welfare) Regulation 1996. New amendments were enacted and the most recent being Construction (Design and Management) Regulations 2007 (Aires et al., 2016).
3.3.1 SOUTH AFRICAN HEALTH AND SAFETY LEGISLATIVE FRAMEWORK There is a range of legislation that impacts the health and safety of workers in South Africa either directly or indirectly referring to health and safety (CIDB, 2009). The range includes the national law/the Constitution (Act 108 of 1996), Basic Conditions of Employment Act No. 75 of 1997, National Building Regulations and Standards Acts No. 103 of 1977 and standard forms of construction contracts used in South Africa. There are, however, primary acts which impact the construction industry in South Africa namely: Occupational Health and Safety (OH&S) Act No. 85 of 1993 under which Construction Regulations were promulgated in 2003 and the Compensation for Occupational Injuries and Diseases (COID) Act No. 130 of 1993 (ibid).
24 GENERAL LEGISLATION
3.3.1.1 The Constitution
The Constitution is the supreme law in the Republic of South Africa and contains the ‘Bill of Rights” which is the cornerstone for democracy in South Africa, binding all citizens to affirm with the democratic rights of human dignity, equality and freedom (The Constitution of the Republic of South Africa, 1996). Under the Bill of Rights, everyone has: “the right to inherent dignity and the right to their dignity being respected” (The Constitution of the Republic of South Africa, Clause 10), “the right to life” (The Constitution of the Republic of South Africa, Clause 11), “the right to freedom and security” (The Constitution of the Republic of South Africa, Clause 12), “no one may be subjected to slavery, servitude or forced labour” (The Constitution of the Republic of South Africa, Clause 13), “the right to fair labour practices”
(The Constitution of the Republic of South Africa, Clause 23), “the right to an environment that is not harmful to their health or wellbeing and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures”
(The Constitution of the Republic of South Africa, Clause 24).
3.3.1.2 Basic Conditions of Employment Act No 75 Of 1997
The purpose of this act is to establish, enforce and regulate basic conditions of employment by effecting the right to fair labour practices as per Section 23 (1) of the Constitution and the International Labour Organisation (Basic Conditions of Employment Act No. 75 of 1997, Clause 2). The conditions make several mentions of the health and safety of workers in the workplace under the following clauses:
Clause 7a – 7b state that employers must regulate working hours of employees in accordance with any Act governing the occupational health and safety and with due regard to the workers' health and safety.
Clause 13.1 and 13.3 stipulate that on the grounds of health and safety, the Minister of Labour may prescribe maximum permitted working hours and night shift for any category of workers.
Clause 17.3a (i) highlights that employers must inform their workers either orally or in writing of any health and safety hazards and enable them to undergo medical examination where a worker is permitted to work between 2300 hours and 0600 hours.
25 3.3.1.3 Labour Relations Act No. 66 of 1995
The purpose of the Act is to promote economic development, social justice, labour peace and democratisation of the workplace in fulfilment of Section 27 of the Constitution and International Labour Organization recommendation (Labour Relations Act No. 66, Chapter 1).
However, the act does not make explicit mention of health and safety although the implication is that health and safety must be considered to promote a peaceful and sustainable workplace for employers and employees (CIDB, 2009).
3.3.1.4 National Building Regulations and Standard Act No. 103 of 1977
The purpose of the Act is to “provide for the promotion of uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities; for the prescribing of building standards; and matters connected therewith” (Building Standards Act, 1977:3). The regulations further make mention of the health and safety of both the public and the workforce.
Under Part E, Demolition Works; such work must be carried out in a safe and healthy manner for the convenience of the public. Part E further attests to the ‘Safe Guarding of Basements’
and prohibits the use of dangerous materials. Part F of the National Building Regulations stipulates that site operations must be carried out in a safe manner protecting members of the public from any dangerous activities on site. Part G addresses general stability requirements related to excavation work and further places emphasis on safety and maintenance when working with excavations. Under Part H of the regulations specify the requirements for working safely in ‘Foundations'.
PRIMARY LEGISLATION
3.3.1.2 Compensation for Occupational Injuries and Diseases Act No. 130 Of 1993 The purpose of this act is "to provide for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the cause of their employment, or death resulting in such injuries or diseases, and to provide for matters connected therewith"
(COID Act No. 130 of 1993). Under Section 22 and Section 65 of the Act, employees or employee’s dependents have the right to compensation as a result of any injuries, disablement, death or occupational diseases in the workplace. Section 38; employers are to give verbal or written notice to the compensation commissioner where an employee has had an accident.
26 Employers doing business within the Republic of South Africa are obliged to register with the commissioner and proved their detail therewith (Section 80).
Section 89 of the Act titled ‘Mandators and contractors’, contractors undertaking work as a whole or part of for the mandatory are required to register as employers in respect to their employees as per the provisions of the Act. Mandators with whom contractors fail to register shall be liable for assessment costs relating to their contractor’s employees. Department of Labour mandates all contractors to be in possession of an up to date ‘COID Letter of Good Standing’ as per the OH&S Act No. 85 of 1993, Construction Regulations Clause 5 (1) (j); the Client must “ensure before any work commences on a site that every principal contractor is registered and in good standing with the compensation fund or with a licensed compensation insurer as contemplated in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993)”.
3.3.1.3 Occupational Health and Safety Act No. 85 Of 1993
The purpose of this act is "to provide for health and safety of persons at work and the health and safety of persons in connections with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection to the activities of persons at work; to establish an advisory council for occupational health and safety; and to provide for matter therewith (OH&S Act No. 85 of 1993).” Weil (2001 cited in Windapo, 2013) stated that OH&S Act 85 of 1993 must form part of a plan for building a society that is based on democratic values of human dignity, equality and freedom. Under this Act, a number of regulations were promulgated of which the Construction Regulations introduced in July 2003 specifically impact the construction industry (CIDB, 2009).
3.4 THE CONSTRUCTION REGULATIONS